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THE 61 CASES On Sunday:An examination of 61 cases demonstrates Minnehaha County’s approach to dealing with DUI from first offenders to drivers who’ve been charged five times. JAIL TERMS Coming Tuesday:Going to jail is one of the potential punishments for drunken drivers, especially for multiple offenses. Yet judges often opt for alternatives over jail. TREATMENT Coming Wednesday:Substance abuse treatment is widely used as a condition of a sentence for DUI. The money for treatment, however, usually runs out before the demand. DUI COURT Coming Thursday:The worst drunken driving offenders can’t stop on their own. For those people, a new alternative is DUI court, an intensive but expensive option. SUCCESSSTORIES Coming Friday:Despite the challenges, there is hope for problem drunken drivers. Some multiple offenders who have turned their lives around tell their stories.

INTERACTIVE VIDEO CHATS

Participate in a series of video chats this week related to the DUI series. WATCH HERE: 9 a.m. today: With Minnehaha County Sheriff Mike Milstead and Circuit Court Judge Larry Long. 1:30 p.m. Tuesday: With Dave Johnson of the Glory House 2:30 p.m. Thursday: With Minnehaha County State’s Attorney Aaron McGowan 1 p.m. Friday: With University of South Dakota law student Dave Whitesock, who has five DUIs in his past but turned his life around. @ARGUSLEADER.COM

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About this report

Argus Leader criminal justice reporter John Hult followed one week of cases of driving under the influence of alcohol through the Minnehaha County court system. The 61 cases were those in which the defendant made his/her first court appearance during the week of Jan. 24-28. The goal was to get a sense for how quickly cases are disposed, how the punishments differ and to what degree the 24/7 program and other treatments help in preventing repeat offenses. Argus Leader staffers attempted to contact all 61 of those charged with DUI. Some chose to talk on the record about the circumstances and disposition of their cases, others did not. But all 61 were included in this report. Contact Hult at jhult@argusleader.com or at 331-2301

24/7 numbers for Class of 61

Number of offenders on 24/7: 22 Number of DUI 2 offenders on 24/7: 14 Number of DUI 1 offenders on 24/7: 3 Participants who violated at least once: 12 Total violations: 23 Offenders on 24/7 from arrest through sentence: 5

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The concept behind South Dakota’s 24/7 sobriety program is simple.

DUI offenders who pass a breath test twice each day can avoid being locked up as their case is resolved. Fail a test and you go to jail.

It’s incentive to stay clean.

The signs since the programs launched in 2005 are positive.

DUI filings in the state have dropped every year since 2006, and alcohol-related traffic deaths have fallen every year but one.

The program now is used in 63 of the state’s 66 counties. It spawned copycat programs in at least two states and gained international interest from countries considering such a program.

But the system isn’t without flaws. Indeed, offenders on the program can “game” the system, drinking to the point of intoxication and perhaps driving that way without ever being caught. Some people simply don’t show up for daily testing. They can go unpunished because Minnehaha County can’t afford to pay deputies to chase them down.

The flaws should not distract from the overall effect, supporters say. The fact is that most people drink less on the program and the public is safer as a result.

“Does it cure all these people? No,” said Minnehaha County Sheriff Mike Milstead. “But it’s curing a lot more people than it’s not, and it’s helping a lot more people than it’s not.”

In an examination of how Minnehaha County deals with drunken drivers, the Argus Leader followed the cases of 61 people who appeared in court on a new DUI charge during the week of Jan. 24-28. Twenty-two of the 61 people tracked during the investigation were placed on the 24/7 program for part of the year. At least six still are on it.

The idea was to keep repeat offenders sober and safe on the roads in the months surrounding their arrest and conviction. It also was designed to give those who wanted sobriety a chance to get it.

Now, however, judges use it for DUIs at all levels, assaults and theft cases as well. They also use SCRAM bracelets, which test a wearer’s sweat for alcohol use once an hour, and biweekly urinalysis, which tests for illicit drug use.

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Most participants pay $1 per breath test. Some pay $6 a day to wear the alcohol-monitoring bracelet.

Circuit Court Judge Larry Long, who instituted the program while he was the state’s attorney general, calls it the most cost-effective way to address the addiction issues that plague the majority of inmates who are assessed by Department of Corrections staff as being alcohol- or methamphetamine dependent.

“The entire criminal-justice system is driven by alcohol and drugs,” Long said. “The part that nobody appreciates is alcohol is more significant than all of the illegal drugs put together. You can pull all the illegal drugs out and you’ve still got 72 percent of the men (in prison) who are drunks. Two out of three of the women and three out of four of the men.”

The 24/7 program also is welcome news for taxpayers because fees charged to the participants cover many of the costs. In Minnehaha County, where almost 600 people participate, the 24/7 fund runs a $9,000 monthly surplus and has a cash balance of more than $280,000.

Despite those figures, the program puts stress on defense lawyers and court officials, who process violations every day but receive no money to cover the labor costs associated with the extra work.

'Ruins people's lives'

Justice system administrators who don’t share in the money generated by the system aren’t the only people irked by the programs.

Some of the 61 offenders tracked by the Argus Leader who were placed on 24/7 said they felt unfairly penalized to be lumped in with problem alcoholics. Others took issue with being forced to prove their sobriety twice daily before the case against them was proved.

Biniyam Liben is a case in point. He was acquitted by a jury of second-offense DUI because prosecutors could not prove he was driving the running car he was found in on Dec. 18, 2010.

By the time a jury ruled him not guilty, he’d been on the program for nine months at a cost of more than $500. He failed four breath tests in that time and spent a total of eight days in jail. Liben said he lost his second-shift job at Starmark Cabinetry because he continued to miss work for failing 24/7 tests.

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“It just ruins people’s lives,” Liben said of the program. “Now I’m trying to pick up where I left off.”

Jim Cooper, a second offender who pleaded guilty this summer, was placed on 24/7 for a year as part of his sentence. Cooper, who also spent two weekends in jail, paid more than $1,000 for intensive outpatient treatment and $400 in fines, said he thinks 24/7 is overly intrusive.

“Twenty-four-seven is a joke,” Cooper said. “I wish they’d just charge me $750, which is what it will cost me to do this for a year.”

People who plan to continue drinking after leaving the program — a group Cooper counts himself in — will control themselves for a while, then return to their old behaviors.

“You just have to mind your p’s and q’s. It’s not stopping anybody who wants to drink from drinking,” he said.

Unlike Liben, Cooper avoided 24/7 during the pretrial phase of his case by paying a cash bond the night of his arrest. Had he waited until the day after he ran the stoplight at Sixth Street and Cliff Avenue, a judge would almost certainly have placed him on the program as a condition of his release.

Ironically, Cooper “blew hot” the morning of Nov. 16, less than 10 hours after talking about his case for this story. His breath test registered .01 at about 5:30 a.m., and he admitted to having “seven or eight” drinks the night before.

He was released back onto 24/7 that afternoon by Judge Alan Dietrich.

“It’s only been two months, Mr. Cooper,” Dietrich said. “It could be a long year for you.”

'Possible to drink'

Had Cooper waited an hour to take the test, probably would have passed. The average person burns off alcohol in the blood at a rate of about one drink every hour and a half, said Erin McCaffrey, the blood alcohol analyst for the Sioux Falls Police.

“It’s totally possible to drink on (the 24/7 program),” said McCaffrey, who testifies at DUI trials.

Cooper was ordered by his sentencing judge to wear a SCRAM bracelet because of his Nov. 16 test failure.

“It was my fault (I failed) because I always go in so early,” Cooper said.

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Michael Wrage, meanwhile, spent five months on 24/7. He never failed a breath test but admitted to “having a six-pack a time or two.”

At first, he said, he tried not to drink, “but there’s a lot of people who have it down to a science,” Wrage said. “As soon as they blow, they start (drinking) and they know when to stop.”

Too many chances

The repeated failures and no-shows have become a sore spot for some prosecutors. More than half of the 22 offenders followed by the Argus Leader who are or were on 24/7, failed at least one test. Three failed four times. Two stopped going and ducked deputies for more than a month.

Each of those who failed were given another chance.

Minnehaha County State’s Attorney Aaron McGowan, generally a supporter of 24/7, said judges have become too lax in punishing those who fail.

“In the infant stage of 24/7, it was advertised as a zero-tolerance program. We were in favor of that,” McGowan said. “I don’t know that anyone should be given a third or fourth chance. I’ve argued against it, but judges don’t all agree with that proposition.”

Others have accepted 24/7 failures as commonplace. Amber Eggert, a public defender representing 22-year-old Amanda Hood, argued for less prison time at her client’s sentencing hearing by pointing out that the third-offender actually had passed every test for eight months.

“We don’t always see people who can make it that long,” Eggert said. “I think she’s doing everything she can to confront her problem head-on.”

Cost to defenders

Eggert’s boss, Minnehaha County Public Defender Traci Smith, can put a dollar amount on the cost to her office of repeated 24/7 failures: $59,800 a year.

Each public defender, Smith said, spends an average of 1.6 hours a week advising and assisting clients who have failed 24/7 tests. Added together, dealing with the failures alone nearly eats up enough hours to pay for another lawyer for the office.

Smith’s chief deputy, Jeff Larson, calculated the figures at the request of county commissioners earlier this year. “We only just started keeping track,” Smith said.

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The public defender’s office doesn’t get any of the $29,000 the program collects in a given month. And, no money goes to the clerk of courts, either, whose employees stamp and file each violation as they would a new criminal charge.

Instead, the money goes to pay the salaries of the county’s 24/7 desk employees, one-quarter of a deputy’s salary and half of a prosecutor’s salary at the Minnehaha County State’s Attorney’s Office. Despite the program’s monthly costs of $20,000, the 24/7 surplus fund has grown to $280,000, Milstead said.

But state law requires that 24/7 money be used to cover program-related expenses, Milstead said, and the money might be needed to pay for a full-time deputy to chase down no-shows in the program as the number of participants increases.

“We shouldn’t have the mindset that we need to spend down the 24/7 funds because it’s the only one in the county that’s in the black,” the sheriff said.

Even so, Milstead said he plans to propose spending about $50,000 from the fund to convert a storage space at the jail into a 24/7 desk that would cut down on foot traffic at the facility and give deputies a more secure environment in which to work.

'I'm a burden'

All the hand-wringing over what the money collected through 24/7 pays for is a product of a guiding principle in place since Long launched the program: Offenders pay, taxpayers do not.

In fact, the program’s state administrator, Art Mabrey, said that judges are advised not to place drivers who can’t pay the $6 daily fee on a SCRAM bracelet.

“If they fall behind in payments, we’ll cut it off,” Mabrey said.

For some offenders, the program’s costs are a problem.

Lavar Blackmon and David Hayes Jr., two men included in the group of offenders followed by the ArgusLeader, said that the way the program runs means the financial burden falls on the families and friends of people in the program.

“I count my change, I ask my wife for some money, I ask my parents for money. It’s a burden on them. Prison is a burden on taxpayers, but I’m a burden on my family because of this,” Blackmon said of eight months on 24/7 before he was sent to prison for a fifth-offense DUI.

Hayes Jr. stopped going to 24/7 testing for a few weeks so he could give the money he’d have spent at the 24/7 desk to his family before serving the jail sentence for third-offense DUI he knew he’d get.

“I just wanted to save some money before doing my time,” Hayes told his judge. “I know it was a stupid decision, but that’s what I did.”